Update on Psychic Psuit in Montgomery County, MD

Nick Nefedro is a 'gypsy' suing Montgomery County Maryland on their ban against

Every person who shall demand or accept any remuneration or gratuity for forecasting or foretelling or for pretending to forecast or foretell the future by cards, palm reading or any other scheme, practice or device.

I first wrote about this case in July 2008 here. On his syndicated radio program Culture Shocks, Barry Lynn, the executive director of Americans United for Separation of Church and State, examined the law banning fortune telling in Montgomery County, Maryland.

Part of the county's argument is that this law protects its citizenry against fraud. Nefedro's argument is that fortunetelling is his gypsy heritage and he is being discriminated against because he can't practice his heritage here in Montgomery County. Conveniently, Nefedro disregards the wandering nature of nomadic gypsies in his application for a business license to set up shop in Bethesda, MD. Nor do we know the status of his application for licensing a caravan to carry him up and down Wisconsin Ave. to ply his trade, sell his wares, dance some jigs...

Nefedro, through the discrimination aspect of his suit, stereotypes the gypsy culture. Today, many psychics, fortune tellers, palm readers, and astrologers have adopted the gypsy mystique to lend an aura of mystery about their craft. Claiming discrimination, Nefedro also leans on the centuries of persecution that gypsies suffered:

He said the law is nothing more than persecution of Gypsies, who have long been stigmatized as nomadic thieves and con artists.

"Gypsies do exist, and they are not criminals," he said, adding that fortunetelling is "something we've been doing for thousands of years."

Far from practicing fortunetelling for thousands of years, the earliest gypsies, known as the Romani people, show up in history around the 11th century. Their heritage stresses the separation of pure and impure. For example, the genitals and lower body are impure, so underwear and lower body clothing must be washed separately from other clothing. Giving birth is impure and must be done outside the home. After giving birth, the mother is considered impure for forty days. However, gypsy fortunetelling is has become a stereotype promoted in romanticized novels and movies, even though there is some basis in fact (e.g. see Rom and Romnichels here). Regardless of the extent of fortunetelling in the Romani past, the practice of fraud in one's heritage does not give license to continue that fraud in today's society - at least not in Montgomery County.

Under the same Montgomery County law, a New Jersey astrologer, Gerry Stevens, was denied a permit to open up shop on Wisconsin Avenue. The Gazette covered the story:

But Rockville attorney Jody S. Kline, who is representing Stevens along with attorney Robert F. Dato of New Jersey, said Stevens Astrology Readings does not violate county code.

"Astrology is not fortune telling," said Kline, who said his client's business would not violate county code. Kline also said he plans to argue the fortune telling law is unconstitutional and violates the First Amendment regarding freedom of religion.

Kline said the astrologer received an OK from the County Attorney's Office in 1996 when Dato corresponded with senior assistant county attorney Alan M. Wright. Since then, Stevens has leased space in Bethesda, but is not able to operate his business because of the permit denial.

In correspondence with the County Attorney's Office, Dato said astrology "interprets the proximity of stars, planets, the sun and moon, thereby providing clients with information that may be of value in determining anticipated courses of action."

But that constitutes fortune telling, said Clifford Royalty, the associate county attorney who is handling the case.

"When Alan wrote his letter, I think he misunderstood what they did," Royalty said. "It seems to me any astrologer is a fortune teller."

It seems like the county attorneys argued that the law was in place to protect the citizens from fraudulent behavior. According to Clifford Royalty,

...the law was most likely passed because "fortune telling is rifled with fraud and the potential to be ripped off."

He said fortune telling is analogous to businesses like adult book and video stores and strip clubs that can have a negative impact on a neighborhood.

In 2001, Monica Mitchell, a 19 year old psychic, lost her case to overturn the fortunetelling ban in Aberdeen City, MD. Walter Stevens, her father-in-law, provided the newsworthy comment:

"Such places of business as she wants to open up are legal across the United States of America, some successful, some not successful. She would like to have the opportunity to either succeed or fail, without being interrupted by local authorities," her father-in-law said.

"We feel that is prejudicial because this business cannot harm anyone, cannot influence anyone, cannot damage anyone and there's nothing criminal about it. It's not like it was a place that sells drug paraphernalia or a nudity bar," Walter Stevens said.

However, Stevens ignores the many scams perpetuated by alleged psychics, with people (particularly elderly women) losing their life's savings due to fraud. By banning fortunetelling for gain, the city and county and state governments can prevent these scoundrels from preying on weaker minds. According to Ben Radford posting on Live Science,

Repeated studies over the course of decades have failed to show strong evidence for the existence of psychic powers. The failure of psychics to predict or prevent tragedies such as the September 11, 2001, terrorist attacks, or the Sago mine collapse—or to locate missing persons such as Natalee Holloway—suggest that such powers, even if they exist, are not reliable enough to be useful. While many self-professed psychics claim that what they do is entertainment, each year hundreds of thousands of dollars are stolen in confidence swindles involving phony psychics.

But back to Nefedro. In December 2008, he lost his case against Montgomery County. In the following from the Washington Examiner, you can get a hint at the way the judge's mind works:

Clifford Royalty, an attorney for Montgomery County, told The Examiner the court upheld the law and he expected a judge to return a signed copy of his written order this week.

“Insofar as the county law does regulate speech, it is narrowly drawn to serve the county’s compelling government interest in protecting its citizenry from fraud,” Royalty’s order said.

“The judge said he agreed with my argument, that this was a proper exercise of police power and would survive scrutiny under the First Amendment,” Royalty told The Examiner. “The judge also asked counsel for Mr. Nefedro if he’d predicted that outcome.”
Nefedro’s attorney, Ed Amourgis, said he was surprised by the decision.

This was an interesting win for Montgomery County. There are similar laws written into city and county codes across the nation and, within the past decade or so, they have come up against First Amendment challenges and have lost (e.g. see here, here, and here). To judge 'free speech', the law takes into account the content of the speech and generally allows it to be sold (just check out all the books in the New Age section of Barnes & Noble). There are further arguments to be made about the fraudulent intent of said speech as well as the detriment to society, especially when there are other laws on the books that deal with fraud. One of the best resources I've seen to navigate through these weighty issues is an article on the Law and Magic blog, May a Municipality Ban Fortune Telling.

That the Montgomery County law has survived so far is testament to the superb job done by Clifford Royalty, the county attorney who has been down this road before. However, his skills are about to be put to the test because Nefedro has appealed his case and is bringing the ACLU onboard. He's still pushing the gypsy discrimination issue, but I think the ACLU will focus on the First Amendment issue. They are well versed in this arena and have had their success in the past regarding a ban on fortunetellers. Also, there's this:

But the clear modern trend in the United States is to strike down such ordinances and statutes, generally on the grounds that they violate Freedom of Speech and are unconstitutionally vague and overbroad. [See Trimble v. City of New Iberia, 73 F.Supp.2d 659 (W.D. La. 1999); Angeline v. Mahoning County Agricultural Society, 993 F. Supp. 627 (N.D. Ohio 1998); Rushman v. City of Milwaukee, 959 F. Supp. 1040 (E.D. Wis. 1997); Argello v. City of Lincoln, 143 F.3d 1152 (8th Cir. 1998); Psychic Science Church v. City of Asusa, 703 P.2d 1119 (Calif. 1985).]

In the City of Asusa case, the court noted:

The City assures us that the ordinance is aimed only at communications that purport to predict future events. Assuming that such a bad would be permissible, however, the ordinance contains no words to this effect. Thus the prohibition against “spiritual reading” would encompass Bible lessons, the bar against “hypnotism” could include hypnosis as an accepted technique of the psychotherapist, the banning of “magic” could prevent numerous popular theatrical performances, and the prohibition against “prophecy” could interfere with many religious services. The ordinance is clearly overbroad, applying to many activities that are protected by the California Constitution.

So, unless Clifford Royalty is a law-god, I think...nay, I predict!...the forces behind the ACLU in an appeals court setting will establish the Montgomery County law as similarly overbroad and that it will be ultimately struck down. However, look for them to make silly arguments like 'if you ban fortunetelling, you must likewise ban weather forecasting, commodities predictions, and medical prognoses." Out of these four, can you guess which one gets pulled out of the butt?

----------
Update 9/2/09: See ACLU of MD's press release here. Legal brief here (pdf warn). Also deleted mp3 download link - it pointed to an episode about Waiter Rants!